Immigration Violations

Transcription

1 Policy 428 Elk Grove Police Department PURPOSE AND SCOPE The purpose of this policy is to provide guidelines to members of the Elk Grove Police Department relating to immigration and interacting with federal immigration officials POLICY It is the policy of the Elk Grove Police Department that all members make personal and professional commitments to equal enforcement of the law and equal service to the public. Confidence in this commitment will increase the effectiveness of this department in protecting and serving the entire community and recognizing the dignity of all persons, regardless of their national origin or immigration status VICTIMS AND WITNESSES To encourage crime reporting and cooperation in the investigation of criminal activity, all individuals, regardless of their immigration status, must feel secure that contacting or being addressed by members of law enforcement will not automatically lead to immigration inquiry and/ or deportation. While it may be necessary to determine the identity of a victim or witness, members shall treat all individuals equally and without regard to race, ethnicity or national origin in any way that would violate the United States or California constitutions IMMIGRATION INQUIRIES PROHIBITED Officers shall not inquire into an individual s immigration status for immigration enforcement purposes (Government Code ) DETENTIONS An officer shall not detain any individual, for any length of time, for a civil violation of federal immigration laws or a related civil warrant (Government Code ). An officer who has a reasonable suspicion that an individual already lawfully contacted or detained has committed a criminal violation of 8 UCS 1326 (unlawful reentry) that may be subject to enhancement may detain the person for a reasonable period of time to contact federal immigration officials to verify whether the United States Attorney General has granted the individual permission for reentry and whether the violation is subject to enhancement (Government Code ). No individual who is otherwise ready to be released should continue to be detained only because questions about the individual s status are unresolved. If the officer has facts that establish probable cause to believe that a person already lawfully detained has violated 8 USC 1326 and the penalty may be subject to enhancement due to prior conviction for specified aggravated felonies, he/she may arrest the individual for that offense (Government Code ). - 1

2 An officer shall not detain any individual, for any length of time, for any other criminal violation of federal immigration laws (Government Code ). An officer should notify a supervisor as soon as practicable whenever an individual is arrested for violation of 8 USC SUPERVISOR RESPONSIBILITIES When notified that an officer has arrested an individual for violation of 8 USC 1326, the supervisor should determine whether it is appropriate to: Transfer the person to federal authorities. Transfer the person to jail FEDERAL REQUESTS FOR ASSISTANCE Requests by federal immigration officials for assistance from this department should be directed to a supervisor. The supervisor is responsible for determining whether the requested assistance would be permitted under the California Values Act (Government Code et seq.) INFORMATION SHARING No member of this department will prohibit, or in any way restrict, any other member from doing any of the following regarding the citizenship or immigration status, lawful or unlawful, of any individual (8 USC 1373; Government Code ): Sending information to, or requesting or receiving such information from federal immigration officials Maintaining such information in department records Exchanging such information with any other federal, state or local government entity Nothing in this policy restricts sharing information that is permissible under the California Values Act IMMIGRATION DETAINERS No individual should be held based solely on a federal immigration detainer under 8 CFR (Government Code ). Notification to a federal authority may be made prior to release of an individual who is the subject of a notification request only if the individual meets one of the following conditions (Government Code ; Government Code ): The individual has been arrested and had a judicial probable cause determination for a serious or violent felony identified in Penal Code or Penal Code The individual has been arrested and had a judicial probable cause determination for a felony punishable by time in a state penitentiary. The individual has been convicted of an offense as identified in Government Code

3 (e) The individual is a current registrant on the California Sex and Arson Registry. The individual is identified by the U.S. Department of Homeland Security s Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant NOTICE TO INDIVIDUALS Individuals in custody shall be given a copy of documentation received from U.S. Immigration and Customs Enforcement (ICE) regarding a hold, notification or transfer request along with information as to whether the Elk Grove Police Department intends to comply with the request (Government Code ). If the Elk Grove Police Department provides ICE with notification that an individual is being, or will be, released on a certain date, the same notification shall be provided in writing to the individual and to his/her attorney or to one additional person who the individual may designate (Government Code ) ICE INTERVIEWS Before any interview regarding civil immigration violations takes place between ICE personnel and an individual in custody, the Elk Grove Police Department shall provide the individual with a written consent form that explains the purpose of the interview, that the interview is voluntary and that he/she may decline to be interviewed or may choose to be interviewed only with his/her attorney present. The consent form must be available in the languages specified in Government Code TRANSFERS TO IMMIGRATION AUTHORITIES Members shall not transfer an individual to immigration authorities unless one of the following circumstances exist: Transfer is authorized by a judicial warrant or judicial probable cause determination. The individual has been convicted of an offense as identified in Government Code The individual is a current registrant on the California Sex and Arson Registry. The individual is identified by the U.S. Department of Homeland Security s Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant U VISA AND T VISA NONIMMIGRANT STATUS Under certain circumstances, federal law allows temporary immigration benefits, known as a U visa, to victims and witnesses of certain qualifying crimes (8 USC 1101(15)(U)). Similar immigration protection, known as a T visa, is available for certain qualifying victims of human trafficking (8 USC 1101(15)(T)). - 3

4 Any request for assistance in applying for U visa or T visa status should be forwarded in a timely manner to the Detective Bureau supervisor assigned to oversee the handling of any related case. The Detective Bureau supervisor should: (e) Consult with the assigned investigator to determine the current status of any related case and whether further documentation is warranted. Contact the appropriate prosecutor assigned to the case, if applicable, to ensure the certification or declaration has not already been completed and whether a certification or declaration is warranted. Address the request and complete the certification or declaration, if appropriate, in a timely manner. 1. The instructions for completing certification and declaration forms can be found on the U.S. Department of Homeland Security (DHS) website. 2. Form I-918 Supplement B certification shall be completed if the victim qualifies under Penal Code (multiple serious offenses). Form I-914 Supplement B certification shall be completed if the victim qualifies under Penal Code or Penal Code (human trafficking). Ensure that any decision to complete, or not complete, a certification or declaration form is documented in the case file and forwarded to the appropriate prosecutor. Include a copy of any completed form in the case file. Inform the victim liaison of any requests and their status TIME FRAMES FOR COMPLETION Officers and their supervisors who are assigned to investigate a case of human trafficking as defined by Penal Code shall complete the above process and the documents needed for indicating the individual is a victim for the T visa application within 15 business days of the first encounter with the victim, regardless of whether it is requested by the victim (Penal Code 236.5). Officers and their supervisors shall complete the above process and the documents needed certifying victim cooperation for a U visa or T visa application pursuant to Penal Code and Penal Code within 90 days of a request from the victim or victim s family related to one of their assigned cases. If the victim is in removal proceedings, the certification shall be processed within 14 days of the request REPORTING TO LEGISLATURE The Detective Bureau supervisor or the authorized designee should ensure that certification requests are reported to the Legislature in January of each year and include the number of certifications signed and the number denied. The report shall comply with Government Code 9795 (Penal Code ; Penal Code ) TRAINING The Training Sergeant should ensure that all appropriate members receive training on immigration issues. - 4

5 Training should include: Identifying civil versus criminal immigration violations. Factors that may be considered in determining whether a criminal immigration offense has been committed. Prohibitions contained in the California Values Act (Government Code 7284 et seq.). - 5